Veterinary Medicine: Malpractice
Florida
Kennedy v. Byas
867 So.2d 1195
District Court of Appeal of Florida, 2004
FACTS: Kennedy filed a 2 count complaint against his veterinarian, Byas, seeking damages for veterinary malpractice in the treatment of his basset hound. Count 1 alleged negligence and emotional distress; count 2 alleged fraud. The defense motion for partial summary judgment was granted with respect to the emotional distress damages, finding that, even if all allegations were proven, Kennedy could not recover for emotional distress, mental pain and suffering, or mental anguish. The court denied the motion with respect to the fraud claim.
ISSUES: Whether emotional damages are recoverable in a veterinary malpractice case; whether the court should abandon the impact rule and allow the recovery for emotional distress in cases involving veterinary malpractice.
HOLDINGS:
1) The Court declines to extend the impact rule or create an exception to that rule to malpractice cases involving animals.
2) The Court finds itself in agreement with the New York courts which recognize that while pet owners may consider pets as part of the family, allowing recovery for these types of cases would place an unnecessary burden on the ever burgeoning caseload of courts in resolving serious tort claims for individuals.
Illinois
Jankowski v. Preiser Animal Hospital
157 Ill.App.3d 818
Appellate Court of Illinois, 1987
FACTS: The Jankowskis took their dog to the Preiser Animal Hospital for diagnostic treatment. During the course of the examination, the veterinarians administered anesthesia to the dog and it died. The Jankowskis filed this claim stating that the defendants were negligent in failing to properly administer the anesthesia and in failing to properly monitor the condition of the dog. They allege that they have been deprived of the companionship, loyalty, security and friendship of the dog. The trial court stated that it would allow the Jankowskis to amend the complaint to state a cause of action for property damage. They declined to so on the basis that the dog had no value as property. The court then dismissed the complaint with prejudice and this appeal followed.
ISSUES: Whether the court should extend the independent cause of action for loss of companionship to permit recovery by a dog owner for the loss of companionship of a dog.
HOLDINGS:
1) An independent cause of action for recovery by a dog owner for the loss of companionship of a dog will not be allowed as it is inconsistent with Illinois law.
2) In the eyes of the law, a dog is an item of personal property.
3) There are a number of items of personal property that have no market value. Included in this group are such items as heirlooms, photographs, trophies and pets.
4) Where property is not the ordinary subject of commerce or is otherwise unique, damages are not restricted to nominal damages; rather, damages must be ascertained in some rational way from such elements as are attainable.
5) The law in IL is that where the object destroyed has no market value, the measure of damages to be applied is the actual value of the object to the owner. The concept of actual value to the owner may include some element of sentimental value in order to avoid limiting the plaintiff to merely nominal damages.
6) To determine “actual value to the plaintiff” a plaintiff is entitled to demonstrate its value to him by such proof as the circumstances admit.
Michigan
Koester v. VCA Animal Hospital
244 Mich.App. 173
Court of Appeals of Michigan, 2000
FACTS: Koester left his dog at VCA’s kennel for a weekend with explicit instructions not to use a collar on the dog because of
a salivary gland problem. Upon returning for the dog, Koester noticed that the dog’s neck area was swollen. A few days later, Koester returned to VCA and a veterinarian treated the dog by draining its enlarged gland and bandaging its neck and head. Noticing that the dog appeared to have trouble breathing, Koester asked the veterinarian whether the bandages were too tight. The veterinarian told him the dog would be fine once he calmed down. Later that same day, Koester left the dog alone for 10 or 15 minutes to run an errand. When he returned home, he discovered the dog laying motionless on the floor. An autopsy revealed that the dog suffocated to death because the bandages were wrapped too tightly. Koester brought this negligence action pleading damages that included pain and suffering, extreme fright, shock, mortification, and the loss of the companionship of his dog. VCA motioned for summary disposition for failure to state a claim on which relief can be granted and the trial court agreed, holding that emotional damages for the loss of a dog do not exist because a dog is considered property.
ISSUES: Whether emotional damages may be awarded for the loss of a property; whether the Court should create for pet owners an independent cause of action for loss of companionship when a pet is negligently injured by a veterinarian.
HOLDINGS:
1) Pets are still considered property under Michigan law. There is no precedent that permits the recovery of damages for emotional injuries suffered as a consequence of property damage. Koester’s complaint failed to plead legally cognizable damages and was properly dismissed.
2) It is within the province of the Legislature, not the Judiciary, to create a cause of action for loss of companionship and emotional injuries that result when a pet is negligently injured by a veterinarian.
Ohio
Oberschlake v. Veterinary Associates Animal Hospital
785 N.E.2d 811
Court of Appeals of Ohio, 2003
FACTS: The Oberschlakes took their dog, “Poopi,” to Veterinary Associates Animal Hospital to have her teeth cleaned. While Poopi was under anesthesia, the veterinarian also tried to spay her, even though she had previously been spayed as a puppy. She emerged from anesthesia with a 3 inch closed incision on her abdomen. The Oberschlakes sued, alleging veterinary malpractice, negligent infliction of emotional distress, and loss of companionship. The trial court granted the vet’s motion to dismiss the emotional distress and loss of companionship/consortium claims. The Oberschlakes appealed.
ISSUES: Whether the Oberschlakes were entitled as a matter of law to non-economic damages for the loss of companionship and emotional distress they suffered; whether Poopi had a direct cause of action her own emotional distress.
HOLDINGS:
1) This case is not the proper venue for plowing new ground and changing Ohio law to award non-economic damages for personal property such as pets.
2) In the absence of “exceptional circumstances,” damages for loss of personal property, including pets, are typically limited to the difference between the property’s fair market value before and immediately after the loss.
3) There is nothing that distinguishes this case from any other situation where a family pet is injured by the negligent action of a veterinarian and thus, damages were properly limited to costs connected to the improper surgery, and did not include emotional distress or the pain and suffering of either the animal or its caretakers.
4) The Court declines to follow Corso, because it contradicted the Ohio legislature’s classification of dogs as personal property when it overruled prior precedent and held that a pet “occupies a special place somewhere in between a person and a piece of personal property.”
5) Whether or not one agrees with the view that pets are more than personal property, it is clear that Ohio does not recognize non-economic damages for injury to companion animals.
6) Even if Ohio law permitted the award of economic damages, negligent infliction of emotional distress would not have been an appropriate cause of action. Being “shocked” over improper surgery to a dog does not present the type of severe debilitating emotional injury required for negligent infliction of emotional distress.
7) A dog cannot recover for emotional distress or for any other direct claims.
8) One Ohio court has impliedly indicated that dog owners may present claims for intentional infliction of emotional distress. The mental anguish element in such situations must be “so serious and of a nature that no reasonable man could be expected to endure it.”